Government clarifies orphan images copyright farrago

One of the aims of the Act is to make provisions about copyright
and rights in performances. As part of these provisions the Act
addresses the matter of orphan works -- works (such as photos)
where the owner cannot be found "after a diligent search made in
accordance with the regulations".

A broad reading of the Act and amendments as they were passed
appears to contain the potential for works uploaded to social sites
such as Instagram to qualify as orphan, given it can be difficult
to determine a real name or accurate contact details for the
author. There are also millions of images online whose metadata is
missing or which have been recirculated and renamed or reuploaded
meaning the original author can be impossible to determine.

One of the fears raised by the passing of this Act is that,
after conducting a cursory search for your name and coming up
blank, a business would be able to use the extended collective
licensing to just use it anyway. But it is important to note that a
lack of metadata does not automatically an orphan make.

"Owners of photographs posted online will not lose control of
their copyright under changes outlined in the Act," said an
Intellectual Property Office spokesperson. "Nor do the changes mean
anyone can use a copyright work without permission or free of
charge. If someone copies a photo posted online they still need the
permission from the rights holder of the photo to do so. If they
don't have this permission they will have to apply for and buy an
orphan works licence."

According to the Act, if a publication is genuinely unable to
find the rights holder and is able to demonstrate this to a
government-appointed body, they may then be able to buy the license
to use the image. The licence fee (at an equivalent rate to that of
a known photographer) is then held in case the rights holder is
then found or comes forward.

The final format of the license itself is currently being
developed in consultation with key stakeholders, including those
representing photographers' interests. It will likely include
conditions of usage (i.e. not derogatory or abusive) and set out
conditions relating to exclusivity and sub-licensing.